Why CETA is Bigger Than NAFTA

Transcription

1 Why CETA is Bigger Than NAFTA Paul Emanuelli General Counsel and Managing Director Procurement Law Office

2 Copyright Notice The following excerpts from Government Procurement (copyright LexisNexis Butterworths 2005, 2008 and 2012), The Laws of Precision Drafting (copyright Northern Standard Publishing 2009), Accelerating the Tendering Cycle (copyright Northern Standard Publishing 2012) and the National Tendering Law Update (copyright Paul Emanuelli ) are reproduced with permission. The further reproduction of these materials without the express written permission of the author is prohibited. Paul Emanuelli, 2014 For further information please contact:

3 About the Author Paul Emanuelli is the General Counsel and Managing Director of the Procurement Law Office. He has been ranked by Who s Who Legal as one of the ten leading public procurement lawyers in the world and his firm was selected by Global Law Experts and Corporate INTL as Canada s top public procurement law firm. Paul s portfolio focuses on major procurement projects, developing innovative procurement formats, negotiating commercial transactions and advising institutions on the strategic legal aspects of their purchasing operations. Paul also has an extensive track record of public speaking, publishing and training. He is the author of Government Procurement, The Laws of Precision Drafting, Accelerating the Tendering Cycle and the National Tendering Law Update. Paul hosts the Procurement Law Update webinar series and has trained and presented to thousands of procurement professionals from hundreds of institutions across Canada and internationally.

4 Why CETA is Bigger Than NAFTA Going Global With Open Public Procurement After years of intense negotiations, Canada recently signed the Comprehensive Economic and Trade Agreement (CETA) with the European Union. Unlike the procurement protocols in the North American Free Trade Agreement, which only impact federal government entities, the new European treaty promises to have an unprecedented impact on public institutions at all levels and sectors of government across Canada. This session will provide an action plan to help you get ready for this new era of open public procurement. 4

5 Newsreel Highlights CETA Fine Print a Work in Progress A report in ipolitics recently confirmed that Canada and the EU remain in ongoing negotiations over the technical details of the recently announced Comprehensive Economic and Trade Agreement: The EU s ambassador to Canada updated the international trade committee Thursday on the status of the Comprehensive Economic and Trade Agreement s (CETA) ongoing technical negotiations, saying she expects talks to be finalized within a few weeks. When Prime Minister Harper announced the conclusion of CETA from Brussels in October with European Commission President José Manuel Barroso, it was said that a deal had been reached on all the controversial issues. 5

6 Newsreel Highlights Six Months to Draft, Two Years to Translate What remained were the so-called technical negotiations, which were never completely explained and weren t supposed to take that long anyway. A couple of months later they still aren t quite done, but they re apparently close. What for the moment is happening is, we have the finalizing of technical negotiations going on, which I think is a question of weeks, EU Ambassador Marie-Anne Coninsx said in response to a question from NDP trade critic Don Davies on Thursday. The story also notes that the final text of the technical negotiations should be completed within six months but that it will take two years to complete the final treaty text in the 23 official languages of the treaty signatories. BJ Siekierski, EU ambassador: finishing CETA technical negotiations a question of weeks, ipolitics, January 30,

7 Understanding CETA Government s Overview Statement The text of the Canadian government s overview statement related to the Canada-EU Comprehensive Economic and Trade Agreement includes the following statement: Government Procurement What this means for Canadians: Canadian companies will be able to bid on opportunities in the lucrative EU government procurement market, which is worth $2.7 trillion annually. 7

8 Understanding CETA Government s Overview Statement The overview statement also notes that: CETA s commitments expand and secure opportunities for Canadian firms to supply their goods and services either directly to government entities or through EU suppliers engaged in procurement contracts with the three main EU-level institutions (European Commission, European Parliament and European Council), the 28 EU member-state governments and the thousands of regional and local government entities within the EU, as well as with a large array of entities operating in the utilities sector. 8

9 Understanding CETA Government s Overview Statement With respect to the threshold issue of where the treaty applies, the overview statement notes that: The Agreement applies only to high-value procurement contracts in order to ensure that governments can continue to use procurement to support local development, especially small and medium-sized enterprises. The threshold-value for procurement contracts in CETA will range from 130,000 to five million special drawing rights (an international value of the International Monetary Fund for which the corresponding range is $205,000 to $7.8 million for the biannual cycle). This is well above the value set under the Agreement on Internal Trade, which starts at $25,000, and is comparable with Canada s thresholds in the WTO. 9

10 Understanding CETA Government s Overview Statement Subject to typical treaty exceptions, the statement notes that the reciprocal non-discrimination protocols in the agreement open up Canadian public procurement opportunities at all levels of government to European suppliers: Canada has also agreed to broad coverage at the federal, provincial and municipal levels, which will help procurement processes be carried out in an open and transparent manner to ensure that taxpayers get the best value for their money. Nevertheless, certain important exceptions are built into CETA s government procurement rules, as they always have been in other trade agreements. These include exceptions for cultural industries, Aboriginal businesses, defence, research and development, financial services, and services in the fields of recreation, sport and education as well as social and health-care services. 10

11 Understanding CETA Highlights From the Government s Technical Summary While the parties continue to formalize and ratify the final legal text of the treaty, the government of Canada released a Technical Summary of Negotiated Outcomes. That technical summary sets out the threshold values at which Canadian public sector entities must give equal access to European suppliers to bid on Canadian contracts. 11

12 Understanding CETA CETA Thresholds Those thresholds are set out as follows: For goods and services: federal government $205,000, provincial and territorial governments and MASH sector (municipalities, academia, school boards and hospitals) $315,000, arm s-length and crown entities $560,000, utility sector $630,000. All construction at all levels of government: $7.8 million. 12

13 Understanding CETA Dispute Resolution While the details have not been officially announced, the technical summary also states that the dispute resolution process under CETA builds on lessons learned from past experience and promises to be significantly shorter than the WTO dispute resolution process. The details of how that process will work, and the role of the contemplated treaty standing committees, remains to be seen as the parties continue to finalize and ratify the full legal text of the agreement. 13

14 3. Open Competition Requirements 4. Approval and Review Process Flow 2. Integrity Indicators Proper Roles and Responsibilities 1. Accountability Controls Clear Requirements and Formats 24. Effective Use of Technology Range of Formats 23. Marketplace Traction Template Content 22. Organizational Traction 21. Organizational Awareness How Do You Measure Up? Awareness of Format Use 10. Drafting Process Flow 20. Procurement and Legal Training Hiring Standards Performance Tracking Scope Management Drafting Roles 12. Document Readability 13. Contract Scoping 14. Material Disclosures 16. Contract Administration 15. Evaluation Defensibility

15 7 Tier Scoring System A. Exceptional B. Excellent C. Good D. Marginal E. Inadequate F. Potential Rules Breach X. Apparent Rules Breach

16 How Do You Measure Up?

17 3. Open Competition Requirements 3 Institutional Governance

18 1. Institutional Governance 3 Open Competition Requirements Does your organization have the appropriate policies and procedures in place to comply with its open competition obligations and avoid trade treaty complaints based on inappropriate sole sourcing, unauthorized branding and biased specifications? 18

19 Institutional Governance Observation 1: For Institutional Governance, organizations reported their strongest results for complying with open competition duties, but scored weaker when assessing their integrity indicators and much weaker (with 65% saying Somewhat Agree or worse) on whether their current accountability controls measure up to emerging due diligence standards.* 1. Accountability Controls 2. Integrity Indicators 3. Open Competition *results drawn from the fall 2013 Procurement Law Office cross-canada survey of National Tendering Law Update subscribers.

20 3. Open Competition

21 Over the Line: Considerations on Value and Thresholds in Public Procurement By Rosslyn Young, Procurement Law Office Value-for-money and open competition are the twin policy pillars that define due diligence under the trade treaties for public institutions. Public tendering is the main vehicle through which these policy goals are accomplished. The threshold question facing Canadian public purchasing professionals on a daily basis is whether the contract value of the procurement calls for open competition. This article by Rosslyn Young is extracted from the Accelerating the Tendering Cycle handbook. 21

22 Threshold Considerations Multiple Thresholds, Quantifying Procurement Value This article will examine the overlapping threshold requirements impacting Canadian public procurement under our various trade treaties and will also discuss how procurement value should be defined and calculated when applying those thresholds. 22

23 Threshold Considerations Overlapping Treaties The first issue to consider is, What is the appropriate threshold? There are a number of overlapping trade treaties operating across Canada, ranging from the national Agreement on Internal Trade ( AIT ) to regional treaties such the New West Partnership Trade Agreement and the Atlantic Procurement Agreement. 23

24 Threshold Considerations Different Thresholds By Treaty and Purchase Type Each of these treaties imposes different thresholds for open competition. Further, there are different thresholds for different categories of purchases, depending on whether the purchase is for goods, services or construction. Where a public institution is subject to more than one trade treaty, a careful analysis of these requirements is essential to ensure compliance. 24

25 Threshold Considerations Quantifying Procurement Value The second issue to consider is, What should be included in the calculation of procurement value? Again, definitions of procurement value vary across Canada depending on the governance matrix of trade treaties, directives and statutes that differ by region and sector. Broadly, the definition of procurement value is the total estimated value of a purchase, but what is included or excluded to calculate that value varies greatly. 25

26 Threshold Considerations Inconsistent Quantification Rules For example, the AIT excludes optional renewals of a contract when the main duration of the contact is at least a year in length, but the Ontario procurement directives, which apply to the provincial government and the broader public sector in Ontario, expressly include optional renewals within the definition of procurement value. 26

27 Threshold Considerations Inconsistent Quantification Protocols Some definitions also provide further details as to what should be included in the calculation. For example, Ontario s Management Board of Cabinet s Procurement Directive includes a list of items that must be included in the calculation for the purposes of determining the appropriate threshold, which includes among other requirements, indirect payments by the government to successful suppliers and conferred value flowing from the government to suppliers. 27

28 Threshold Considerations Rules For Revenue Generating Contracts Finally, public sector institutions must determine whether the opportunity constitutes a procurement process at all. In Bell Nexxia Inc. v. The Commissioner of Corrections and Telus Integrated Communications Inc., a Federal Court of Appeal decision from 2002, the court held that the procurement of a telecom provider to supply telephone services in federal corrections facilities did not constitute a procurement for the purposes of the AIT. 28

29 Threshold Considerations Does the Financial Commitment Test Govern? The telephone services were paid for by the inmates personally and accordingly there were no payments made by Corrections Services Canada to the service provider. The Court of Appeal decision overturned a prior Canadian International Trade Tribunal ( CITT ) determination that had found that the RFP did constitute a procurement process. In rendering the decision, the Court of Appeal found that because Corrections Services Canada was not paying for the services, there was no financial commitment for the purposes of the definition of procurement value and therefore the tendering process was not subject to AIT and the jurisdiction of the CITT. 29

30 Threshold Considerations Issue Has Broad Practical Implications While the Bell Nexxia decision found that the opportunity for a private company to make money through the public sector did not constitute procurement for the purposes of the AIT, many public sector institutions still opt to put such concession opportunities to public tender. Examples include the procurement of food service providers for cafeterias in government buildings or coffee kiosks on university campuses. 30

31 Threshold Considerations Policy Reasons for Competing Rev-Gen Contracts Under these types of arrangements, the service provider pays the public sector for the opportunity to offer food services on public property. Another high-profile example of the public tendering of a revenue-generating opportunity was the public procurement process recently run by the Niagara Parks Commission to procure a service provider for the boat tour services in the Niagara Gorge, an opportunity that nets millions of dollars for the Ontario government annually and was recently awarded to a new supplier after a long-term untendered incumbency. 31

32 CETA Action Plan Three-Pronged CETA Compliance Strategy Review your current general trade treaty compliance practices to ensure that you have a solid foundation on which to layer your CETA compliance practices. Review your current bid dispute containment strategy to ensure that it is properly coordinated through a procurement review committee. Establish a CETA-compliance working group to proactively prepare for the implementation of the trade treaty.

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34 For more information please contact: Paul Emanuelli General Counsel Procurement Law Office Marilyn Brown Senior Counsel Procurement Law Office Rosslyn Young Senior Counsel Procurement Law Office Jennifer Marston Legal Counsel Procurement Law Office